Congressional Record: September 13, 2006 (Senate)
Page S9450-S9452
NSA WARRANTLESS SURVEILLANCE PROGRAM
Mr. ROCKEFELLER. Mr. President, the National Security Agency has been
wiretapping the conversations of Americans without obtaining court
orders, as required by the Foreign Intelligence Surveillance Act, or
FISA, for the past 5 years.
In recent months, a number of bills have been proposed which would
codify the President's program of warrantless surveillance. The White
House is now pushing the Senate Judiciary Committee to pass sweeping
legislation that would amend FISA and grant the President unprecedented
authority to undertake wiretapping in the United States without the
judicial scrutiny currently required by law.
For Congress to legislate on this program in the coming days would
not only be premature but irresponsible.
The fact remains that despite repeated assurances from the
administration, Members of Congress remain in the dark and cannot
answer fundamental questions about the program's existence,
effectiveness or legal justification.
As one of the few Members who have received the most detailed
information to date. I can tell you that, putting aside the legal
argument, the administration has not been able to document convincingly
the counterterrorism benefits of the program.
In fact for the past 6 months, I have been requesting, without
success, specific details about the program including how many
terrorists have been identified, how many arrested, how many convicted,
and how many terrorists have been deported or killed as a direct result
of information obtained through the warrantless wiretapping program.
I can assure you, not one person in Congress has the answers to these
fundamental questions.
At the same time, let me be perfectly clear, I support all efforts to
track down terrorists wherever they are using all of our best
technology and resources. But it can and must be done legally and in a
way that protects the rights of all Americans.
For 4\1/2\ years, the President had restricted knowledge of this
program to the top leaders of the Senate and House and the two top
leaders on the congressional Intelligence Committees.
By limiting the briefings to 2 of the 15 Intelligence Committee
members, the White House had sought to prevent the committee from
conducting the legally required oversight of the NSA program.
Because of this restriction on access to the program, the committee
has been effectively prevented from knowing about the program,
evaluating the program, and acting on the program.
Frankly, I believe the White House goal of the past 5 years has been
to use the iron cloak of secrecy to keep Congress ignorant of and
powerless to challenge a controversial program of suspect legality.
The repeated representations by the President and senior
administration officials that the warrantless wiretapping program was
and is subject to extensive congressional oversight are simply
outrageous.
Entire committees, not individual Senators, report out legislation
that authorizes and funds intelligence collection programs. The full
Senate, not individual Senators, takes action to approve or reject this
legislation.
The White House wanted a warrantless wiretapping program that was
exempt from the scrutiny of both the courts and the Congress, even if
it meant ignoring the legal requirements of FISA and the National
Security Acts and shattering what had been decades of responsible,
bipartisan congressional oversight of intelligence programs. Why?
Administration officials have stated that the fact that the NSA was
collecting the communications of suspected terrorists coming in or out
of the United States without a court's determination that probable
cause existed was simply too sensitive to disclose to the other Members
of Congress intimating that the congressional Intelligence Committees
could not keep aspects of the program classified.
I would remind this administration that the Intelligence Committee is
entrusted on a daily basis with the secrets that if disclosed would
irreparably harm our national security, compromise multibillion-dollar
collection programs, and even get people killed.
There are 15 members of the Senate Intelligence Committee and many
more of my colleagues who at an earlier time served on the committee.
All Senators, by right of their elected position and the duties they
are sworn to carry out have access to the details of these highly
classified collection programs.
It is a sobering responsibility but members of our committee and the
Senate as a whole have protected these secrets because each of us
understands what is at stake.
In fact, as someone who has been briefed on the NSA wiretapping
program, I can assure may colleagues that the sensitivity of the
program pales in comparison with other intelligence activities our
committee oversees on a routine basis.
My colleagues should be troubled by the fact that the only NSA
intelligence collection program that the White House has directed be
described in detail publicly is also the only NSA program the White
House continues to withhold from the full Senate.
I want my colleagues to consider the implications of this carefully.
At a time when terrorism is the No. 1 threat to America's security,
the White House has decided that Congress cannot be trusted with the
job of protecting our citizens.
Instead of working with Congress, the President decided with an
almost imperial disdain to ignore the constitutional role the
legislative branch plays in providing for the National defense.
It wasn't until March 9 of this year, and after enormous pressure,
that the administration agreed to allow five additional committee
members and three staffers to be briefed into the program.
Another 2 months would pass before the White House agreed with our
request that the entire committee membership be apprised of the
program's operations.
However, contrary to public statements in recent months by the
President and Vice President that Congress is being fully briefed, I am
dismayed to report that this administration continues to pursue its
policy of depriving the Congress the information it needs to understand
and evaluate the NSA program's legal underpinnings, operational
conduct, and usefulness in identifying and arresting terrorists.
On February 23, 2006, I wrote to NSA Director GEN Keith Alexander,
Attorney General Alberto Gonzales and Director of National Intelligence
John Negroponte requesting documents and information about the NSA
program, including the Presidential orders authorizing the program,
legal reviews and opinions relating to the program, procedures and
guidelines on the use of information obtained through the program, and
specifics about the counterterrorism benefits of the program.
This letter was followed up with a second more refined request on May
15 of 54 items based on briefings the committee had recently received.
The May letter repeated my earlier request for basic documentation
and information, such as the Presidential authorization orders, which
are essential in order for the Intelligence Committee to fully
understand and thoroughly evaluate the NSA program, a necessary step
before considering whether legislation relating to the program or
amending FISA is needed.
Over 6 months have passed since I sent my original February letter
and the Intelligence Committee has not received the requested
information.
During this time, I and my staff director repeatedly raised the issue
of the delinquent replies with White House and administration
officials, including a direct appeal I made to Director Negroponte in
July.
Six months and no response from the administration. This is simply
unacceptable.
Three days after I met with Director Negroponte and expressed my
concerns about the lack of a response to the February and May requests
for documents and information, the Intelligence Committee received a
fax from the NSA's Office of General Counsel forwarding ``a set of
administration-approved unclassified talking points for members to
use.''
[[Page S9451]]
The cover page of the fax included comments indicating that the
talking points were prepared in response to questions from committee
members about what could be said publicly about the NSA program.
When I read the talking points, I was stunned to find that the NSA
provided political talking points.
Instead of providing the requested assistance in delineating what is
and what is not classified about the program, the talking points
contain subjective statements intended to advance a particular policy
view and present the NSA program in the best possible light.
Instead of providing the committee with the documents and information
requested a half year earlier and allowing the committee to complete
its own review of the NSA program and to draw its own independent
conclusions, the administration preferred telling committee members
what to think and what to say.
The administration-approved talking points encouraged Senators to
make statements such as ``I can say that the Program must continue; It
is being run in a highly disciplined way,'' and ``There is strict
oversight in place both at NSA and outside, now including the full
congressional committees.''
The talking points also argue for changes to FISA claiming ``Current
law is not agile enough to handle the threat'' and ``The FISA should be
amended so that it is technologically neutral.''
These statements were intended to advocate the White House policy
line rather than provide guidance on classification.
Even before the intelligence committee can finish its own review of
the NSA program the administration attempted to use the members of the
intelligence committee--the only committee witting of the program's
details--as mouthpieces to parrot conclusive statements in support of
White House policy.
These talking points are the latest examples of how the
administration has co-opted an agency of the intelligence community to
keep information from Congress in support of a controversial policy or
program. Our committee has run into this disturbing practice with
respect to the administration's program for the detention,
interrogation and rendition of individuals suspected on involvement
with terrorism as well.
The White House's unwillingness to provide requested information to
the Congress on the detention and interrogation program for many years
created a void in congressional oversight, eventually filled by the
courts and the Hamdan decision earlier this year.
In this case, the administration took the calculated risk that it
could go it alone, without working with Congress, and they guessed
wrong.
Now faced with a court decision not to its liking, the White House is
coming to Congress seeking a legislative remedy.
Evidently, the administration has failed to learn the lessons of this
go-it-alone approach.
The documents I requested of the NSA, Justice Department, and Office
of the DNI 6 months ago have been withheld at the direction of the
White House.
The administration is trying to run out the clock on my requests in
the hopes that Congress can be manipulated to pass legislation this
session authorizing a program it does not fully understand.
At the same time, a simple request of the NSA to detail what is and
is not classified about the warrantless surveillance program is forced
to go through the White House and, as a result, turned into a litany of
administration P.R. statements.
I and six other members of the Intelligence Committee wrote to NSA
Director Alexander last month expressing our concerns over the
appropriateness of these administration-approved talking points and
objecting to the requirement that the NSA must clear with the White
House any requested information about its own program before it is sent
to Congress.
We also asked that Director Alexander review this incident and
provided the committee in writing an explanation of by whom and on what
authority these talking points were prepared, who approved of their
distribution to members of the Intelligence Committee, and who made the
decision that they should be cleared by the administration prior to
being provided to committee members.
Mr. President, I ask unanimous consent to have printed in the Record
the administration-approved NSA talking points, faxed to the
Intelligence Committee on July 27, 2006, the August 29, 2006, letter to
NSA Director Gen. Alexander signed by me and Senators Levin, Feinstein,
Wyden, Bayh, Mikulski, and Feingold, and the September 1, 2006,
response from General Alexander.
There being no objection, the material was ordered to be printed in
the Record, as follows:
From: Alonzo Robertson, Office of General Counsel.
Date: 27 July 2006.
To: Hon. Pat Roberts, Chairman, SSCI.
During recent Terrorist Surveillance Program (TSP)
briefings, a number of members have expressed a desire to
know what they can say about the TSP. Attached is a set of
Administration approved, unclassified talking points for the
Members to use.
We would appreciate it if you would distribute to the
Members.
Alonzo Robertson.
Talking Points for Intelligence Committee Members To Use on Terrorist
Surveillance Program
The terrorist threat to this country is real. We need to do
everything possible to make our nation safe, and we need to
do it in a way that preserves our civil liberties.
As a member of an intelligence committee of Congress, I am
fully committed to that goal. We are the watchdogs of the
Intelligence Community, including the National Security
Agency that is carrying out the Terrorist Surveillance
Program.
I have been briefed on the Program and stood on the
operations floor at NSA to see first-hand how vital it is to
the security of our country and how carefully it is being
run.
It would be irresponsible to reveal details because that
would give our adversaries an advantage. My colleagues and I
are very serious about protecting our nation's secrets.
I can say that the Program must continue. It has detected
terrorist plots that could have resulted in death or injury
to Americans both at home and abroad.
It is being run in a highly disciplined way that takes
great pains to protect U.S. privacy rights. There is strict
oversight in place, both at NSA and outside, now including
the full congressional intelligence committees.
The Program is not ``Data mining''; it targets only
international communications closely connected to al Qa'ida
or an affiliated group.
I have personally met the dedicated men and women of NSA.
The country owes them an enormous debt of gratitude for their
superb efforts to keep us all secure.
Current law is not agile enough to handle the threat posed
by sophisticated international terrorist organizations such
as al Qa'ida. This is because the Foreign Intelligence
Surveillance Act of 1978, or ``FISA,'' has not kept pace with
communications technology and was not designed for the types
of threats we now face.
Today, in part because of technological changes over the
last 30 years, the FISA frequently requires judicial
authority to collect the communications of non-U.S. persons
outside the United States. This clogs the FISA process with
applications for court orders that have little to do with
protecting U.S. privacy rights.
The FISA should be amended so that it is technology
neutral. This would return it to its original purpose of
focusing FISA privacy protections on Americans in the United
States. It would greatly improve the FISA process and relieve
the massive amounts of resources currently being consumed.
____
U.S. Senate,
Select committee on Intelligence,
Washington, DC, August 29, 2006.
Gen. Keith B. Alexander,
Director, National Security Agency,
Fort George Meade, MD.
Dear General Alexander: If our intelligence agencies are to
be successful in their mission, it is vitally important that
they maintain their independence. It is the National Security
Agency's (NSA) duty to make sure that policymakers and
military leaders are presented with accurate, objective
intelligence information. If the NSA, or any other
intelligence agency, enters a policy debate, it risks the
loss of policymakers' confidence and could compromise the
agency's effectiveness. That is why we were so troubled by
talking points that members of the Senate Select Committee on
Intelligence recently received from the NSA.
The talking points at issue related to the NSA warrantless
surveillance program and were accompanied by a cover page
from the NSA's Office of General Counsel. The cover page
included comments indicating that the talking points were
prepared in response to questions from Committee members
about what could be said publicly about the NSA program.
Instead of providing assistance in delineating what is and is
not classified about the program, the talking points contain
subjective statements that appear intended to advance a
particular policy view
[[Page S9452]]
and present certain facts in the best possible light.
The talking points include statements such as ``I can say
that the Program must continue''; ``It is being run in a
highly disciplined way''; and ``There is strict oversight in
place, both at NSA and outside, now including the full
congressional oversight committees,'' The talking points also
argue for changes to the Foreign Intelligence Surveillance
Act (FISA) claiming ``Current law is not agile enough to
handle the threat'' and ``The FISA should be amended so that
it is technological1y neutral.'' These statements appear
intended to advocate particular policies rather than provide
guidance on classification.
As you know, the Congress is currently evaluating various
aspects of the NSA program. The Senate Intelligence Committee
is in the process of gathering information to understand
operational aspects of the program, and the Senate Judiciary
Committee has held public hearings related to the program's
legal foundations. Several pieces of legislation dealing with
this program and the FISA have been introduced in the
Senate and the House of Representatives.
The future of the warrantless eavesdropping program and any
proposed changes to the FISA are policy matters currently
being considered in the political arena. We understand the
Administration has a certain point of view regarding this
program. The program is, however, the subject of
consideration in the Congress.
We believe that it is inappropriate for the NSA to insert
itself into this policy debate. In addition, we are
particularly troubled by the statement on the cover page that
the document is ``Administration approved, unclassified
talking points for Members to use.'' We object to an
intelligence agency, such as the NSA, clearing documents such
as these with the Administration prior to providing them to
the Congress.
We also would note that the administration has failed to
provide the Committee with documents and other basic
information we need to conduct the strict oversight of the
NSA program that the NSA talking points suggest is happening.
We ask that you review this incident and provide the
Committee in writing, no later than September 8, 2006, an
explanation of by whom and on what authority these talking
points were prepared, who approved of their distribution to
members of the Senate Intelligence Committee, and who made
the decision that they should be cleared by the
Administration prior to their being provided to Committee
members. We also ask that your response describe steps you
intend to take to ensure that all NSA employees understand
the importance of NSA maintaining its independence from
policy debates.
Thank you for your attention to this matter.
Jay Rockefeller.
Evan Bayh.
Russell D. Feingold.
Dianne Feinstein.
Carl Levin.
Barbara A. Mikulski.
Ron Wyden.
____
National Security Agency,
Fort George G. Meade, MD, 1 September 2006.
Hon. John D. Rockefeller IV,
Vice Chairman, Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Dear Vice Chairman Rockefeller: I appreciated the chance to
talk with you yesterday about the concerns you raised in your
letter of 29 August 2006 pertaining to a set of talking
points on the President's Terrorist Surveillance Program
(TSP) that NSA provided to the full Senate and House
intelligence committees. I regret that our effort was
misperceived as political.
As I stated on the phone, my intent was to respond to
requests from intelligence committee Members who visited the
Agency to oversee the TSP. They cited constituent concerns
and asked what they could say publicly about the Program, and
we wanted to be as helpful as possible. Because we are an
Executive Branch agency, it is standard practice that NSA
coordinated the talking points with the Department of
Justice, National Security Council staff, and the Office of
the Director of National Intelligence. We were especially
concerned that nothing we gave out could or would be
construed as classified.
I again assure you that we intended our effort to be
apolitical. We are proud of our people, and our talking
points reflect the pride in our service to our nation. I want
to emphasize that NSA will not permit political
considerations to taint our intelligence information.
If you have any questions, please call me or Michael
Lawrence, Director of Legislative Affairs.
Keith B. Alexander,
Lieutenant General, U.S. Army,
Director, NSA.
Mr. ROCKEFELLER. Mr. President, it is clear to me that the
administration's withholding of documents is designed to hamper the
Intelligence Committee's review of the NSA program. Up to this point,
information provided to the committee in briefings held since March has
been filtered and generalized through charts and slides.
My attempts to obtain original documents, such as the Presidential
authorizations, and to ask questions that go beyond these
administration-approved briefings have been ignored.
This refusal to respond to legitimate information requests from the
Oversight Committee, combined with the administration's over-
restriction of member and staff access to the NSA program, is part of a
cynical White House strategy to prevent Congress from either acting or
forcing it to legislate on vital national security and privacy issues
in the dark.
Twenty of the 100 currently serving Senators have been briefed on the
NSA program at one point or another in the past 5 years. The White
House currently allows only three members of the Intelligence Committee
staff--two Republican staffers and one Democrat--to have access to the
NSA program.
By contrast, there are well over a thousand employees at the NSA,
CIA, FBI, Justice Department, Office of DNI, Pentagon and White House
briefed into the NSA program.
I want my colleagues to take note of this disparity. Twenty Senators
and three staffers compared with over a thousand executive branch
employees.
If, in the remaining weeks of this session, the full Senate is asked
to consider legislation to revise FISA or authorize aspects of the NSA
warrantless surveillance program, it is untenable--if not
unprecedented--to keep four-fifths of the Senate ignorant of why the
changes are justified or what intelligence activities they are
authorizing.
The Senate should insist that all Members be allowed to understand
the NSA wiretapping program--with the appropriate care being taken to
protect the remaining classified aspects not already acknowledged by
the President--and be given the chance to draw their own conclusions
about whether it is justified.
Finally, General Hayden and others have publicly stated that no legal
concerns have been raised within the administration about the operation
of the NSA program. Limited information presented to the committee
contradicts this assertion. But the committee has been prevented from
understanding the details and context of these internal debates about
the program's legality due to the administration's stonewalling.
I urge my colleagues--we must insist on a full accounting of the
NSA's ongoing 5-year program before acting on legislation that gives
the President the authority to wiretap the phone conversations of
Americans where a court has not determined that a probable cause
standard has been met.
Mr. President, I yield the floor.
The PRESIDENT pro tempore. The Senator from Georgia is recognized.
Mr. ISAKSON. Mr. President, I rise to speak for 8 minutes and ask the
Chair to give me the signal when I have used that time.
The PRESIDENT pro tempore. The Senator has 16\1/2\ minutes.
____________________